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Exhibit 11(c)(5)
[LETTERHEAD OF XXXXXXXXX & XXXXX GROUP]
February 8, 0000
Xxx Xxxxx Xxxxxxxxx Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
CONFIDENTIALITY AGREEMENT
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Dear Sirs:
In connection with your possible interest in the purchase of (the
"Transaction") Xxxxxxxxx and Xxxxx Group (the "Company"), you have requested
that we furnish you or your representatives with certain information relating
to the Company or the Transaction. All such information (whether written or
oral) furnished (whether before or after the date hereof) by us or our
directors, officers, employees, affiliates, representatives (including, without
limitation, financial advisors, attorneys and accountants) or agents
(collectively, "our Representatives") to you or your directors, officers,
employees, affiliates, representatives (including, without limitation,
financial advisors, attorneys and accountants) or agents or your potential
sources of financing for the Transaction (collectively, "your Representatives")
and all analyses, compilations, forecasts, studies or other documents prepared
by you or your Representative in connection with your or their review of, or
your interest in, the Transaction which contain or reflect any such information
is hereinafter referred to as the "Information". The term Information will not,
however, include information which (a) is or becomes publicly available other
than as a result of a disclosure by you or your Representatives, (b) was
available to you on a nonconfidential basis prior to its disclosure to you by
us or our Representatives, or (c) was or becomes available to you on a
nonconfidential basis from a person, other than by us or our Representatives,
who is not known by you to be bound by a confidentiality agreement with us.
Accordingly, you hereby agree that:
1. You and your Representatives (i) will keep the Information confidential and
will not (except as required by applicable law, regulation or legal process,
and only after compliance with paragraph 3 below), without our prior written
consent, disclose any Information in any manner whatsoever, and (ii) will
not use any Information other than in connection with the Transaction;
provided, however, that you may reveal the Information to your
Representatives (a) who need to know the Information for the purpose of
evaluating the Transaction, (b) who are informed by you of the confidential
nature of the Information and (c) who agree to act in accordance with the
terms of this letter agreement; and provided, further, that you may disclose
to your Federal or state banking regulator, on a confidential basis, such of
the Information as may be deemed advisable or necessary upon advice of your
counsel. You will cause your Representative to observe the terms of this
letter agreement, and you will be responsible for any breach of this letter
agreement by any of your Representatives.
2. You and your Representatives will not (except as permitted above with
respect to your banking regulators or as required by applicable law,
regulation or legal process, and
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only after compliance with paragraph 3 below), without our prior written
consent, disclose to any person the fact that the Information exists or has
been made available that you are considering the Transaction or any other
transaction involving the Company, or that discussions or negotiations are
taking or have taken place concerning the Transaction or involving the
Company or any term, condition or other fact relating to the Transaction or
such discussions or negotiations, including, without limitation, the status
thereof.
3. In the event that you or any of your Representatives are requested pursuant
to, or required by, applicable law, regulation or legal process to disclose
any of the Information, you will notify us promptly so that we may seek a
protective order or other appropriate remedy or, in our sole discretion,
waive compliance with the terms of this letter agreement. In the event that
no such protective order or other remedy is obtained, or that the Company
does not waive compliance with the terms of this letter agreement, you will
furnish only that portion of the Information which you are advised by
counsel is legally required and will exercise all reasonable efforts to
obtain reliable assurance that confidential treatment will be accorded the
Information.
4. If you determine not to proceed with the Transaction, you will promptly
inform us of that decision and at any time upon the request of the Company
or any of our Representatives, you will either (i) promptly destroy all
copies of the written Information in you or your Representatives'
possession and confirm such destruction to us in writing, or (ii) promptly
deliver to the Company at your own expense all copies of the written
Information in you or your Representatives' possession. Any oral
Information will continue to be subject to the terms of this letter
agreement. The foregoing shall not apply to any analysis derived from
Information contained in presentations to your Board of Directors.
5. You acknowledge that neither we, nor any of our officers, directors,
employees, agents or controlling persons within the meaning of Section 20
of the Securities Exchange Act of 1934, as amended, makes any express or
implied representation or warranty as to the accuracy or completeness of
the Information, and you agree that no such person will have any liability
relating to the Information or for any errors therein or omissions
therefrom. You further agree that you are not entitled to rely on the
accuracy or completeness of the Information and that you will be entitled
to rely solely on such representations and warranties as may be included in
any definitive agreement with respect to the Transaction, subject to such
limitations and restrictions as may be contained therein.
6. You are aware, and you will advise your Representatives who are informed of
the matters that are the subject of this letter agreement, of the
restrictions imposed by the United States securities laws on the purchase
or sale of securities by any person who has received material, non-public
information from the issuer of such securities and on the communication of
such information to any other person when it is reasonably foreseeable that
such other person is likely to purchase or sell such securities in reliance
upon such information.
7. You agree that, for a period of eighteen months from the date of this
letter agreement, neither you nor any of your affiliates will, without the
prior written consent of the Company or its Board of Directors other than
in the ordinary course of your brokerage, investment advisory, private
banking or asset management businesses or otherwise acting in the ordinary
course of your business as trustee or other fiduciary capacity: (i)
acquire, offer to acquire, or agree to acquire, directly or indirectly, by
purchase or otherwise, any voting securities or direct or indirect rights
to acquire any voting
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securities of the Company, or any subsidiary thereof, or any successor to
or person in control of the Company, or any assets of the Company or any
subsidiary or division thereof or of any such successor or controlling
person; (ii) make, or in any way participate in, directly or indirectly,
any "solicitation" of "proxies" (as such terms are sued in the rules of the
Securities Exchange Commission) to vote, or seek to advise or influence any
person or entitle with respect to the voting of, any voting securities of
the Company; (iii) make any public announcement with respect to, or submit
a proposal for, or offer of (without conditions) any extraordinary
transaction involving the Company or its securities or assets; or (iv)
form, join or in any way participate in a "group" (as defined in Section
13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection
with any of the foregoing.
8. You agree that, for a period of eighteen months from the date of this
letter agreement, you will not, directly or indirectly, solicit for
employment or hire any employee of the Company who became known to you in
connection with your consideration of the Transaction; provided, however,
that the foregoing provision will not prevent you from employing any such
person who contacts you on his or her own initiative without any direct or
indirect solicitation by or encouragement from you or who contacts you on
the basis of a public advertisement or general solicitation.
9. You acknowledge and agree that (a) we and our Representatives are free to
conduct the process leading up to a possible Transaction as we and our
Representatives, in our sole discretion, determine (including, without
limitation, by negotiating with any prospective buyer and entering into a
preliminary or definitive agreement without prior notice to you or any
other person), (b) we reserve the right, in our sole discretion, to change
the procedures relating to our consideration of the Transaction at any time
without prior notice to you or any other person, to reject any and all
proposals made by you or any of your Representatives with regard to the
Transaction, and to terminate discussions and negotiations with you at any
time and none of our Representatives will have any liability to you with
respect to the Transaction, whether by virtue of this letter agreement,
any other written or oral expression with respect to the Transaction or
otherwise.
10. You acknowledge that remedies at law may be inadequate to protect us
against any actual or threatened breach of this letter agreement by you or
by your Representatives, and, without prejudice to any other rights and
remedies otherwise available to us, you agree to the granting of injunctive
relief in our favor without proof of actual damages.
11. You agree that no failure or delay by us in exercising any right, power or
privilege hereunder will operate as a waiver thereof, nor will any single
or partial exercise thereof preclude any other or further exercise thereof
or the exercise of any right, power or privilege hereunder.
12. Except as otherwise specifically provided for in Paragraphs 7 and 8 hereof,
your obligations under this letter agreement shall terminate upon the
earlier of (i) the consummation of the Transaction with us and (ii) the
second anniversary of the date first written above. This letter agreement
shall be governed by and construed in accordance with the laws of the State
of New York applicable to contracts executed in and to be performed in
that state. This letter agreement contains the entire agreement between you
and us concerning the confidentiality of the Information, and no
modifications of this letter agreement or waiver of the terms and
conditions hereof will be binding upon you or us, less approved in writing
by each of you and us.
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Please confirm your agreement with the foregoing by signing and returning to
the undersigned the duplicate copy of this letter enclosed herewith.
Very truly yours,
XXXXXXXXX & XXXXX
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Chief Financial Officer
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Accepted and Agreed as of the date first written above:
The Chase Manhattan Corporation
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By: /s/ Xxxxxxx X. XxXxxxx
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Name: Xxxxxxx X. XxXxxxx
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Title: General Counsel
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